June 08, 2009

Supreme Court Doesn't Want To Know Either

The U.S. Supreme Court upheld Don't Ask, Don't Tell this morning. The plantiff, Army captain James Pietrangelo, was just on KGO radio in San Francisco tearing the Obama administration a new one, referring to the president as a liar, a bigot, and a coward. It is almost as if the president were some mere mortal of a politician.

Joe Solmonese defended the ruling and the administration by noting, "In these dark economic times, it's imperative we see a silver lining in our setbacks. Thanks to this administration and rulings like this, the Human Rights Campaign will be collecting money from you suckers concerned GLBT citizens for years to come."

so now we have the first overtly ANTI-gay action from the obama administration DEFENDING dadt to the supreme court because it's 'important for maintaining troop morale' ... and yet we STILL have obama apologists claiming that they don't realllly mean it... ugh.
what the hell do 'dark economic times' have to do with it ?? sounds like solmonese is upset that the cocktail parties haven't been as frequent or as fabulous lately.

So, I'm confused. Working with a predominantly conservative Supreme Court, DADT has upheld a ruling no one really much expected them to overturn. And this is Obama's fault again exactly how? I know that over the last eight years the power of the Executive branch has grown exponentially, but I didn't realize that it had consumed the Judicial branch like a predatory amoeba in a power tie.

I'm also confused regarding expectations of the Supremes. Do we support or oppose the Supremes "making policy" and being "activist judges" because it seems terribly situational...

QuakerJono, it is not Obama's fault that the Supreme Court upheld DADT. The Supreme Court would most likely have upheld it no matter what brief the administration gave to the Supreme Court.

What is Obama's fault is that he has apparently reneged on a campaign promise. It's one thing to say that one doesn't want them thar "activist judges" "making policy." But it's another to submit a brief supporting and justifying keeping DADT in place. That is apparently what the administration did.

Maybe there was some reason for this. Perhaps Obama when making his campaign promise to end DADT and allow gay persons to serve openly he should have said, "I support ending DADT, but I will have to wait until a time that is politically expedient and after I fix the economy, since I can't multitask. I may have to wait until most or all of our troops are out of Iraq and Afghanistan. In the meantime, when a case goes to the Supreme Court, I'm going to have to submit briefs that rationalize keeping DADT in place."

Or better yet, let Obama explain NOW what the heck he is doing, since all actions and inactions he has taken related to DADT fly in the face of his campaign promise.

I railed against Bush for all of his anti-gay policies, actions, and inactions. I'm not giving Obama a free pass.

I had no illusions that Obama was really for "hope" and "change." And perhaps it's still too early. But so far, Obama has fallen well short of my low expectations.

It certainly is disappointing when we don't get something we want, something we're sure we're entitled to, immediately when we want it. I'm sure the 99% of the other cases brought forward to the Supremes for potential review who were also not heard are as equally and bitterly disappointed as Mr. Pietrangelo. However, it occurs to me that, simply because one's case wasn't heard (and even recommended against by Kagan's brief), it doesn't follow that this is motivated by lies, bigotry and cowardice. Or even that the brief represents a policy shift from the administration responsible recommending against it.

In all likelihood, this case was never going to be heard by SCOTUS in the first place. While this is unfortunate for Pietrangelo, it's also important to remember that he was one of 12 original plaintiff's in this case, all the others of which have dropped out. Not because they suddenly decided they were okay with DADT, but because they realized this was not a case SCOTUS was going to hear. Mostly because there just wasn't enough meat to it in terms of the factual record. They never made it to the discovery phase, so SCOTUS is less than inclined to weigh in on a case that might not be about what it claims to be about.

Further, yes, the public, both Republican and Democrat, appear to support the repeal of DADT. However, to date, there is not a large body of legal division among appellate courts concerning DADT. This harkens back to my "activist judge" comment. SCOUTS should only (and generally does) step in when existing law needs to either be clarifies or when considerable uncertainty to a law's constitutionality exists. At this point, you do not have the wide range of legal ruling that denotes such a wide range. Until that legal uncertainty exists and is identified (and a matter of record), SCOTUS has no reason to step in.

Finally, there is a good possibility that DADT will be overturned politically. Obama is on record as wishing to end DADT and the filing of the brief does not countermand that stance. Indeed, reading it, it seems to sets up a political move from Obama now to end DADT not through courts, but via legislation, which is how it should be ended. It points out that, traditionally, matters of military readiness have been the realm of the Executive and Legislative branches, not the Judicial. This sounds like groundwork being laid.

Does it suck for Pietrangello? Certainly, but the fact remains he was backing a horse that was never going to make it across the line, brief or no.

Really, the better judicial case against DADT is coming from last year's Texas 9th Circuit Court of Appeals ruling on Margaret Witt's discharge. The bar has been raised much higher with that ruling that tasks the state with definitively proving that Witt's dismissal not only improved unit cohesion but also that there were no other alternatives available. Now, instead of Texas having to just prove they have a "rational basis" for removing Witt (and other servicemen and women) because of their sexuality and its supposed effect on unit cohesion, they must specifically document cases and incidents which demonstrate how a serviceman or woman's sexuality directly harmed unit cohesion and how their removal was the only way to improve it. This is amusing as even the staunch right wingers who support DADT tend to say that cohesion was harmed not by the sexuality of the individual, necessarily, but by the investigations and fact-finding that occur to remove that individual. It's a neat little Catch 22 that Texas has found itself in.

Does any of this help Pietrangello? Probably not and it certainly doesn't assuage his anger or disappointment. However, to throw the baby out with the bathwater and start hurling insults doesn't make the situation any better. Neither does looking at a situation anything other than tactically. 1% of cases get heard. Pietrangello's was never going to be one of them. Doesn't affect Obama or his promises one way or the other.

QuakerJono, I agree pretty much with what you wrote. Sure, part of the disappointment is not getting something and all that. And no, I did not expect that the Supreme Court to rule in favor of repealing DADT or even think that they should.

The problem I had with the brief is that it sounded like a justification to keep DADT, as opposed to one that saying that this should not happen through the courts. Maybe this is asking too much from a leader, but since Obama is on record for saying DADT should end and since his administration sent a brief that contradicted that, you'd think that he could at least publicly explain exactly what's going on here. Sure, this might be tactical, and maybe Obama's thinking is that this whole thing could be undermined if, God forbid, he explained to us peons exactly what is going on. And as long as we're in the dark, the claims of lies, bigotry, and cowardice are not far fetched and frankly, justified.

So much for the "change" he also promised (or are we supposed to wait for that as well because of the wars, the economy, or the need to make his NCAA picks(okay, this one was snarky), etc.). Then again, I never expected that anyway.

Well, Pat, change takes time. This is one of the problems I've always seen with supporting Obama, and when I first started supporting him and brought it up, I was decried as not being a true believer. Now, more amusingly, the same people are decrying me as an apologist.

Everyone seemed to expect that, not only was Obama the second coming, but he had mastered twisting spacetime to accomplish all goals immediately. However, in his speeches, he has always been careful on timetables. He's always tried to provide a clear outline of what he thought was important and how he would proceed through those issues. He is in support of repealing DADT, but he has been saying since last November that it really wasn't on the agenda until most likely 2010. He's also implied that what he wants to see is the repeal going to Congress as part of a much larger reorg and military manpower overhaul with the support of the Pentagon. This gives it a much better chance of being passed, because not only is it part of a larger bill, but it's also supported by the military itself. That kind of consensus building, however, takes time, particularly when the armed forces are fighting wars on two fronts and who knows what's going to happen with Iran and North Korea.

Like most of life, you can have it fast or you can have it good. I do believe Obama is trying to give "right" on this and right takes time. Plus, he must work within the framework of public opinion (or at least he should). While public support is certainly for a DADT repeal, I would be interested to see exactly where those same members of the public would rank the effort to achieve that repeal. I'm almost positive it would fall behind other issues such as the economy, unemployment, health care and even the environment in terms of disaster preparedness.

I will admit that one's reaction to the brief may be highly colored by what one read it looking for, but the brief did not sound to me like it supported keeping DADT longterm. It counseled against hearing Pietrangelo's case as the "policy-maker" on DADT (as the case had no legs and a political/legislative solution is easier to accomplish with fewer SCOTUS rulings either for or against) and sought to help reestablished the purview of the Judicial, Executive and Legislative branches, something which has been a little "fuzzy" as of late. Again, yes, it sucks for Pietrangelo, but the question one must ask oneself is: Is getting DADT firmly done away with the goal or is it getting Pietrangelo, out gay serviceman and impassioned lawyer, arguing in front of SCOTUS on this particular case? I don't want to blame the victim, but from his behavior, I'm beginning to question Pietrangelo's motives and wonder if his vitriol, at least in part, doesn't stem from a more selfish source that, as a lawyer, he was just denied a shot at his profession's brass ring. Remember, several law backers and 12 defendants to one intimately involved defendant. Maybe it's a "Mr. Smith Goes To Washington" moment, but Pietrangelo's reaction argues otherwise.

As for Obama and transparency, well, he did explain it to us. Not, perhaps, as directly as he should have I'll agree, but his message has not significantly changed and he has not acted out of character nor off message. He's been saying he didn't see action on DADT happening before 2010 and that he really was hoping for a political solution rather than a judicial one since last year. The filing of this brief in no way countermands that and, in fact, extends it.

So yes, we'd all like to see immediate and satisfactory action on the causes and issues that are most important to us and, when we don't get that, we are disappointed. I again caution against throwing out the baby with the bathwater and sinking into cynical despondency (or outright attacks like Pietrangelo has done) because your timetable is not the one he's endorsing or has endorsed in the past. We're not in the dark, but we also must be vigilant against confusing the message of lobby groups, talking heads and even our own desires with the message Obama has had in place from the get go.

QuakerJono, you've made excellent points, and I can't argue with much of it. My problem is that Obama did promise he believed that DADT should end. Perhaps when he spoke about this, he should have made it clear that he has to take care of the economy and the wars first, and then in 2010, he'll get Congress to act on it, and make sure it's perfect and all that. Perhaps I missed that. But more importantly, when the brief was sent to the Supreme Court, he should have been direct about what was going on, so we agree there.

I gave Bush chance after chance when he was president, and gave him every chance to have my opinion on him change. I will certainly do the same for Obama. I'll be watching his SOTU in January and we'll be seeing if he does indeed propose ending DADT to Congress.

I don't think it's fair to say that you are an Obama apologist. I've read your opinions about him over the past year or so, and you have been very consistent. But it is refreshing to see that gay Democratic supporters aren't just rolling over when Democrats appear to not following through on their promises.

Fair enough, Pat. That's where we'll call it, then. I will also admit that I'm not 100% happy with the level of "transparency" that Obama has offered regarding some of his decisions. While I don't like to make comparisons (what happened for the last eight years is over and the situation is now Obama's to solve or exacerbate as his abilities provide...because it pissed me directly the hell off when people gave Bush's cock-ups a pass because 'it was all Clinton's fault'...four or five years after the man left office), I will say that I am happier with it than I have been for the past eight years.